Part 12

It was currently rumored in the clubs, and even found expression in the public prints, that Mrs. Sprague, a daughter of Chief-Justice Chase, was influential in preventing Mr. Conkling from taking a stand in the Senate against the findings and decision of the electoral tribunal in favor of Mr. Hayes. As the report savored of scandal, it was, of course, rapidly circulated and heedlessly credited, though out of respect to all parties interested, the stories slumbered for many years until the means by which Mr. Hayes was inaugurated as President could be more dispassionately discussed than on the eve of the distribution of the patronage of a new administration. Fourteen years after Hayes' inauguration the scandal was revived for partisan purposes in part, and in part, presumably, in the interest of historic justice. A phase of the discussion at that time in the New York _Evening Post_ provoked the foregoing letter from Hon. George Hoadley, ex-Governor of Ohio, which probably gives the most authentic information the country can ever expect to have of the mysterious and vacillating conduct of Mr. Conkling. My attention was called to it by the Hon. Smith Ely, formerly Mayor of New York, to whom I sent the following acknowledgment:

JOHN BIGELOW TO HON. SMITH ELY

"HIGHLAND-FALLS-ON-HUDSON, _June 19, 1904_.

"MY DEAR MR. ELY,--I am extremely obliged to you for the clipping you sent me from the _Evening Post_. Though familiar with rumors of that nature, it is the first statement with any semblance of authenticity I have met with of the reasons why Conkling did not keep faith with our friends. I am not sure that Conkling himself did not weaken at the pinch as much as the recalcitrant Senator. Had he stood up on that occasion, as he should have done, he would have established for himself a reputation for virtues which no biographer can now claim for him.

"I do not remember the name of the Senator alluded to, because I never knew the fact. Was it Kernan?

"Yours truly.

"P. S.--Cannot you give us a candidate for the Presidency without making prostitutes of the judiciary?[18] When we made judges elective we went as far in that direction as was safe, and farther than was prudent. It was a perversion of the representative system when we submitted the choice of experts, like judges and district attorneys, to the popular vote. If we encourage judges to aspire to the Presidency the suitors for justice will have to take their check-books to court, and their cases will be argued, as they are said to be, before Turkish cadis.

"Yours Truly, "JOHN BIGELOW."

[18] At the date of this note a judge of the Court of Appeals of the State of New York had been nominated and was running for the Presidency.

* * * * *

About the middle of January, 1877, and before the Electoral Commission had given its decision, I received a telegram from Washington that a friend of the Honorable S. S. Cox, then a representative in Congress from New York city, wished to confer with me in reference to the Presidential contest pending in Washington. Cox's friend proved to be Mr. Corbin, a brother-in-law of President Grant. I replied to my correspondent that he might arrange for an interview with me anywhere in New York city except in Mr. Corbin's house, Corbin at that time having a residence in New York city.

It was arranged that we should meet at the Westminster Hotel, about noon, on the 27th of January. I had known something of Corbin through my relations with Colonel Benton many years before, and had become slightly acquainted with him. What I did know of him disinclined me to give him my confidence. I had no idea of the motive which led him to invite this interview. He had intimated to Mr. Cox that he would talk with me, but with no other of Mr. Tilden's friends. The grounds for his taking me into his confidence exclusively was equally unintelligible, beyond the fact that we had been political friends of long standing as common friends of Senator Thomas Benton, of Missouri.

He opened the interview by giving at considerable length what he regarded as evidence of Senator Sherman's expectation that his brother the general would have been nominated at Cincinnati in 1876 instead of President Hayes, and of the intrigues already making for the general's nomination of 1880. At length he proceeded to speak for and in the name of his brother-in-law, the President. He said Grant wished to retire with grace and honorably from his office, and had no special interest in the success of either of the candidates whose fate was depending upon the action of the Electoral Commission. He said that for himself he preferred Tilden forty times to Hayes, and that all the ladies of Grant's family were champions of Tilden. He wound up by saying that if he could be useful in letting the President's views be known to Governor Tilden, when they might serve a useful purpose, he would be glad to do so, and that that was the special purpose of his inviting this interview.

I said to him that in a contingency not difficult to imagine there might be two persons claiming a title to the White House on the 4th of March, one by the choice of the Senate, another by the choice of the House of Representatives, and that it would interest Governor Tilden very much to know whether General Grant would think it his duty to solve that problem with the sword, or leave it to the solution of time and events. Corbin replied that he would tell me what must not go beyond me and Governor Tilden. Some time ago, he said, Grant sent a number of boxes to his house at Elizabeth for safe-keeping, and in stating his intention to do so, he observed that as the inauguration would occur on Sunday at 12 M. he proposed to vacate the White House Saturday night; whoever, therefore, said Corbin, gets into it first will have a very substantial advantage. The President might perhaps stay in until the following day if sufficient reason were shown for so doing. But, said I, suppose our candidate gets the White House and the other gets the Capitol, what then? Corbin paused a little, and then said: "The keeper of the Capitol is under the control of the Commissioner of Public Buildings. The Commissioner of Public Buildings is an engineer officer, under the orders of Chief-Engineer Humphreys. The present Commissioner of Public Buildings is Babcock; like St. Paul, he is generally believed to have an eye 'to the recompense of reward.' Then, those Irish doorkeepers may be worth looking to." Such was the substance of an interview which occupied about two hours.

What may have prompted Corbin to take the trouble to come all the way from Washington to give me this hint, beyond a desire to give himself importance in the eyes of Mr. Tilden, and how far President Grant countenanced his mission, if he knew anything about it, are questions which I never troubled myself to solve. There is no doubt that President Grant thought Tilden had been elected, and found no satisfaction in the prospect of having Hayes for his successor; but if he had wished to convey to Mr. Tilden any intimation that he would find the White House vacant and ready for his occupation on the night of the 3d of March, I find it difficult to believe that he would have selected Corbin for his emissary. However that may be, neither Mr. Tilden nor myself thought his communication worthy of serious consideration.

On the second day of March the House of Representatives, by a vote of 137 to 88, adopted the preamble and resolutions which follow, declaring that Samuel J. Tilden had been duly elected President, and Thomas A. Hendricks duly elected Vice-President of the United States. If these 137 votes in favor of Tilden and Hendricks represented the requisite constitutional number of States in the Union, it is not easy to see what more was necessary to make the one President and the other Vice-President two days later than simply to take the oaths of office prescribed by the Constitution.

RESOLUTIONS ADOPTED BY THE HOUSE OF REPRESENTATIVES DECLARING TILDEN THE PRESIDENT ELECTED

The following is the text of the declaration of the House of Representatives that Samuel J. Tilden has been duly elected President of the United States, and Thos. A. Hendricks Vice-President of the United States:

"WHEREAS, It is not disputed that the electoral votes of the following-named States, to wit., Alabama, Arkansas, Connecticut, Delaware, Georgia, Indiana, Kentucky, Maryland, Mississippi, Missouri, New Jersey, New York, North Carolina, Tennessee, Texas, Virginia, and West Virginia, amounting in all to 184, were in conformity to the Constitution and laws of the United States cast for Samuel J. Tilden, of the State of New York, for President, and for Thos. A. Hendricks, of the State of Indiana, for Vice-President of the United States, by legally qualified electors appointed by said States, and severally in the manner directed by the Legislatures of said States, lists of which said votes were duly signed, certified, and transmitted sealed by said electors respectively to the seat of government, directed to the president of the Senate and by him opened in the presence of the Senate and House of Representatives, as required by the Constitution of the United States; and

"WHEREAS, The evidence taken and reported to this House in pursuance of the orders thereof, shows conclusively that on the 7th day of November, in the year of our Lord 1876, the following-named persons, to wit., Wilkinson Call, J. E. Yonge, R. B. Hilton, and Robt. Bullock, each of whom was in all respects legally eligible and qualified to be appointed elector for President and Vice-President of the United States, were duly appointed electors by the State of Florida, in the manner directed by the Legislature of said State; and, whereas, the said Wilkinson Call, J. E. Yonge, R. B. Hilton, and Robert Bullock, after having been so appointed electors for President and Vice-President of the United States by said State of Florida, in the manner directed by the Legislature thereof, did, on the 6th day of December, in the year of our Lord 1876, meet in the city of Tallahassee, in the said State of Florida, that being the time and place fixed by the Constitution and laws of the United States, and of the State of Florida, at which the electors appointed by said State should meet; and having so met, as the electors duly appointed by the State of Florida as aforesaid, did then and there, in pursuance of the Constitution and laws of the United States, cast by ballot four votes for Samuel J. Tilden, of the State of New York, for President of the United States, and in like manner cast four votes for said Thomas A. Hendricks, of the State of Indiana, for Vice-President of the United States, naming in separate and distinct ballots the person voted for by them for President and the person voted for by them for Vice-President, and then and there made distinct lists of the persons voted for by them for President and Vice-President of the United States, and of the number of votes cast for each, which lists were by said electors signed, certified, and transmitted by them sealed to the seat of government, directed to the president of the Senate, and by him opened in the presence of the Senate and House of Representatives, as required by the Constitution of the United States; and

"WHEREAS, The evidence taken and reported to this House, in pursuance of the order thereof, conclusively shows that on the 7th day of November, in the year of our Lord 1876, the following-named persons, to wit., John McEnery, R. C. Wickliffe, L. St. Martin, E. P. Poche, A. De Blanc, W. Seay, R. G. Cobb, K. A. Cross, each of whom was in all respects legally eligible and qualified to be appointed electors for President and Vice-President of the United States, were duly appointed electors by the State of Louisiana, in the manner provided by the Legislature of said State; and

"WHEREAS, The said John McEnery, R. C. Wickliffe, L. St. Martin, E. P. Poche, A. De Blanc, W. A. Seay, R. G. Cobb, K. A. Cross, after having been so appointed electors for President and Vice-President of the United States for the State of Louisiana, in the manner directed by the Legislature thereof, did, on the 6th day of December, in the year of our Lord 1876, meet in the city of New Orleans, in the said State of Louisiana, it being the time and place fixed by the Constitution and laws of the United States, and of the said State of Louisiana, at which the electors appointed by the said State should meet, and having so met, did, then and there, as the electors duly appointed for the State of Louisiana, as aforesaid, in pursuance of the laws and Constitution of the United States, cast by ballot eight votes for Samuel J. Tilden, of New York, for President of the United States, and in like manner cast eight votes for Thomas A. Hendricks, of the State of Indiana, for Vice-President of the United States, naming in separate and distinct ballots the persons voted for by them for President, and the person voted for by them for Vice-President of the United States, and then and there made distinct lists of the persons voted for by them for President and Vice-President of the United States, and the number of votes cast for each, which lists were by said electors signed, certified, and transmitted by said electors sealed to the seat of government, directed to the president of the Senate, and by him opened in the presence of the Senate and House of Representatives, as required by the Constitution of the United States; and

"WHEREAS, The evidence taken and reported to the House in pursuance of the orders thereof, shows conclusively that certain persons who pretended to have been appointed electors by the State of Florida, and who pretended as such to cast four votes for Rutherford B. Hayes, of Ohio, for President of the United States, and four votes for William A. Wheeler, of New York, for Vice-President of the United States, to wit., F. C. Humphreys, C. H. Pearce, W. H. Holden, and T. W. Long, who were not appointed by the State of Florida, but were falsely and fraudulently declared elected, when in truth they had each and every one of them been defeated by a clear majority, as was well known by the then Governor of Florida and the other canvassing officers of that State, who falsely and fraudulently made such declaration; and

"WHEREAS, The evidence taken and reported to this House in pursuance of the orders, further shows conclusively that certain persons, namely, William Pitt Kellogg, J. H. Burch, Peter Joseph, Lionel A. Sheldon, Morris Marks, A. B. Levisee, O. H. Brewster, and Oscar Joffrion, were falsely, fraudulently, and corruptly declared to have been appointed electors by the State of Louisiana, and did falsely, fraudulently, and corruptly pretend to cast eight votes for Rutherford B. Hayes for President, and eight votes for William A. Wheeler for Vice-President of the United States, when in truth and in fact they had never been appointed electors by the said State of Louisiana, but had been defeated by a majority of several thousands of the legally qualified voters of said State, at a fair, peaceful, and legally conducted election, held in pursuance of the law of said State, all of which was well known to the Board of Returning Officers, who made the false, fraudulent, and corrupt declaration of their pretended appointment as electors, and who, under the Constitution and laws of the said State of Louisiana, had no jurisdiction or authority to make any such declaration or statement; and

"WHEREAS, The pretended votes were given by F. C. Humphreys, Charles H. Pearce, William H. Holden, T. W. Long, William Pitt Kellogg, J. H. Burch, Peter Joseph, Lionel A. Sheldon, Morris Marks, Aaron B. Levisee, O. H. Brewster, and Oscar Joffrion, electors, now, therefore, in view of the foregoing facts, the truth of which is attested by an overwhelming array of sworn testimony, as well as by the intelligence of the American people,

"_Resolved_, By the House of Representatives of the United States of America, that it is the duty of the House to declare, and this House does hereby solemnly declare, that Samuel J. Tilden, of the State of New York, received 196 electoral votes for the office of President of the United States, all of which votes were cast and lists thereof signed, certified, and transmitted to the seat of government, directed to the president of the Senate, in conformity with the Constitution and laws of the United States, by electors legally eligible and qualified as such electors, each of whom had been duly appointed and elected, in the manner directed by the Legislature of the State in and for which he cast his vote as aforesaid; and that said Samuel J. Tilden, having thus received the votes of a majority of the electors appointed as aforesaid, he was thereby duly elected President of the United States of America for the term of four years, commencing on the 4th day of March, A.D. 1877.

"And this House further declares that Thomas A. Hendricks, having received the same number of the electoral votes for the office of Vice-President of the United States that were cast for Samuel J. Tilden for President, as aforesaid, the said votes having been cast for him by the same persons who voted for the said Tilden for President, as aforesaid, and at the same time and in the same manner, it is the opinion of this House that said Thomas A. Hendricks, of the State of Indiana, was duly elected Vice-President of the United States for a term of four years, commencing on the 4th day of March, A.D. 1877."

H. A. POPE TO TILDEN

"COLUMBUS, MISS., _Jany. 8, '77_.

"HON. SAML. J. TILDEN.

"SIR,--Although a citizen in private life, I, nevertheless, feel, I trust, as profound interest as any one in the welfare of our common country. In its life it has had crises, but none more alarming since '60 than that which grows out of the Presidential election between you and Gen. Hayes.

"Of your election I do not entertain a doubt; and it were simply to render our beautiful system of self-government on the part of the people a burlesque and reproach to allow a set of gambling politicians to set at defiance the expressed will of the sovereign people.

"Of course we of the South are powerless in the premises, and were it otherwise I am not prepared altogether to suggest the proper course. At this critical juncture peace is more than ever a social and political necessity. But, then, how can we ever expect to preserve constitutional liberty if such a precedent--so violative and destructive of the distinctive and peculiar feature of our more peculiar system of govt., submission to the legally expressed will of the majority--is tolerated.

"To you, sir, I look for counsel, and I trust you will be endowed with more than your recognized distinguished sagacity.

"I have been very much surprised, and not a little amused, at the contradictory opinions which even the learned in the law and governmental science have given both as to the law and practice in the case of the counting of the electoral votes, and as to the ultimate tribunal known to the Constitution as the final arbiter in the premises. Cushing, the learned parliamentarian, and no mean statesman, has gone so far as to intimate Gen. Grant could, under certain circumstances which may exist, hold over after the 4th of March next and continuously--till, indeed, the succession transpires; and so teaches Senator Bogy in a speech in St. Louis.

"A fearful and most dangerous suggestion, verily! And amazing that it should ever have found lodgment and utterance from so distinguished a source. But it has not the semblance of law or the slightest approach to truth in it.

"Cushing reasons from analogy, and says because officers in many of the States hold over till their successors are installed he therefore sees no reason why Gen. Grant should not do so.

"The ready answer to this opinion, however, is very plain and fatal to the force implied in it. In the case of the State officer, he acts in the instance mentioned by express authority of law. But in the case of the President, he is elected for a term of four years, no more or less, and there being no enabling act authorizing him to protract the term a moment beyond the limitation mentioned, should he do so he would be a usurper and deserve death as such at the hands of any citizen. In the cases you at once see there is no analogy whatever, and hence Cushing is certainly mistaken. As to the force and aspect of the 22d rule or any other rule or rules, about which a volume has been written, in solving adverse views, a word or two disposes of them. They are these modes of procedure--centures of the private action of both Houses of Congress, adopted for their convenience and the harmonious despatch of business. But they are dead letters if they contravene the Constitution of the U. S. or attempt to execute any of its requirements.

"Laws are required for the purpose, and not rules. Laws to which all the departments of legislation are necessarily, by law, parties--Congress and the Executive.

"As rules, moreover, they bind only the particular Congress adopting them; and do not lap over, save by acquiescence, express or implied. Hence, as I've said, the 22d rule is dead till revived as suggested, and has therefore no application to the case between you and Hayes.

"But to the general issue. In the event it should be formed from any cause, real or supposed, and _purely in the opinion and discretion of Congress_, neither you nor Mr. Hayes has the requisite number of 185 electoral votes required to confer the office, then to my apprehension the 12th amendment becomes the law of the case--_exclusively and supremely so_.

"You are familiar with it.

"It refers the whole question to Congress, and if, upon a review of the facts in the case, if it should decide there has been no election and the two Houses _can't agree that there has been_, whether the disagreement is real or feigned, then _the House_ must _choose the President_ and the Senate the Vice-President.

"If you will carefully consider the amendment, with the history of the question of electing the President in the Madison papers, you will, I think, agree with me that Congress is empowered with power similar to the omnipotence of Parliament in the premises considered.

"When I remember the House is Democratic I rejoice greatly at the fact, and esteem it most fortunate for the whole country, for your election is certain.

"Although, sir, a very stranger to you, I am, nevertheless, a lover of my whole country--desire peace and the prevalence of law and order, and the perpetuation of constitutional liberty. And with the hope, possibly, of exciting in your mind a new and perhaps valuable train of thought upon the subject, I have ventured to write.

"If you find anything worthy of your consideration I shall be gratified to know.

"With the greatest respect and prayers for the prolongation of your life, I am,

"Your obt. Servt., "H. A. POPE."

W. C. P. BRECKENRIDGE TO G. W. MORGAN

"LEXINGTON, KY., _Jan. 13th, 1877_.