1876, Rutherford B. Hayes v. Samuel Tilden: Controversy Over Election Returns In This Election – Guest Essayist: Professor Forrest Nabors

Not long after the Civil War began, the poet Julia Ward Howe witnessed a procession of Union troops near Washington, D.C. Later that night, words stirred her from her sleep; she arose and caught them on paper. The lines of the Battle Hymn of the Republic that Howe penned that night alerted the hearer that God’s retributive justice had awakened, as Jefferson predicted (“his justice cannot sleep forever”), and at that moment, was moving upon the earth.

In her poem, an apocalypse has finally come, brought on by the Moloch of American slavery. The world is transformed. Union military camps become temples; their flaming campfires spell out the long-suffering God’s final sentence. A “fiery gospel writ in burnished rows of steel” supplants the gentle gospel of peace. Men are called away from peaceful pursuits and become pious instruments of their God’s “terrible, swift sword.” Ready to “die to make men free,” marching Union soldiers would exact atonement for America’s original sin.

The remarkable career of Rutherford B. Hayes followed Howe’s prophetic script. Hayes was a devout Christian, raised among Ohio abolitionists. At the outbreak of hostilities, he was a middle-aged, Harvard-educated attorney, a husband and father, and knew nothing of war. Yet, after the shelling of Fort Sumter and the war began, he immediately volunteered, writing in his diary, “I would prefer to go into it, if I knew I was to die or be killed.” Thus began the surprising transformation of the Christian gentleman into the determined Christian warrior.

Appointed to a minor command, Hayes learned war on the job. Future President William McKinley knew Hayes as “sunny, agreeable” and “generous,” but in battle, “his whole nature seemed to change.” His demeanor became “intense and ferocious.” Despite rising in rank, Hayes personally led his men into hand-to-hand combat with the enemy, participated in the bloodiest battles of the war, was cited for conspicuous gallantry and was wounded five times.

The Republican Party nominated him to run for Congress before the war ended. At the suggestion of party leaders that he take temporary leave of the army so that he could campaign, Hayes answered, “An officer fit for duty who at this crisis would abandon his post to electioneer for a seat in Congress ought to be scalped.” His congressional district elected the absentee candidate anyway. By war’s end, Hayes was breveted major general, joined Congress and came out in favor of the civil and political equality of black Americans. Hayes maintained this policy in his subsequent two terms as governor of Ohio.

This was the man who was poised to succeed Ulysses S. Grant as President of the United States in 1876. However, electoral success and continued presidential support for black American citizenship, was far from secure.

The Democrats had shrewdly nominated New York Governor Samuel J. Tilden to oppose Hayes. Tilden had favored permitting the South to secede, criticized the Lincoln administration for restricting civil liberties during the war, and then supported speedy readmission of the recently defeated insurrectionary states into the Union. To deflect attention away from these sins against the Union, Democrats touted Tilden’s incorruptible character, which was genuine.

As chairman of the Democratic State Committee in New York after the Civil War, Tilden took steps to purge his own party of corruption. He courageously broke up the Tweed ring that ran the Democratic Party in New York City and orchestrated the prosecution of the ringleader, Boss Tweed. Voters rewarded Tilden by making him governor, and Governor Tilden insured that Tweed remained in jail where he died.

The selection of Tilden as presidential candidate in 1876 was the right strategic choice in that year. After many scandals in the previous Grant administration, Tilden’s reputation for probity stood a good chance of outweighing his lukewarm support for the Union during the war.

But while national Democrats promoted the incorruptible Tilden for president, southern Democrats used widespread fraud and violence to check the voting power of white and black Republicans in their region. The probity of Tilden concealed the corruption of his party’s southern lieutenants.

The election of 1876 was very close. To win the presidency, one of the two candidates had to win a simple majority, amounting to at least 185 electoral votes. Tilden swept the South, New York, Connecticut and New Jersey, and Hayes won the rest of the North and West. But electoral votes from Florida, South Carolina and Louisiana were in dispute, and one elector for Hayes from Oregon was disqualified. The total number of undisputed electoral votes was 184 for Tilden and 165 for Hayes. The disputed electoral votes were 20. The Constitution provided no roadmap to deal with the problem.

To complicate matters, the House of Representatives was in the hands of Democrats, and Republicans controlled the Senate. The nation was once again in uncharted waters. The disputed election led to incendiary talk, especially by northern Democrats who urged armed resistance. But southern Democrats calmed their northern colleagues, sometimes with ridicule. Georgia Democrat Benjamin Hill noted that northern Democrats were “invincible in peace, and invisible in war.”

Once again, President Grant’s prestige provided a means to resolve the crisis. He negotiated an agreement with Congress. An Electoral Commission would be formed from five House members, five Senators and five Supreme Court Justices, all split along party lines. The Commission was charged to determine the rightful winner of the disputed electoral votes.

But behind the scenes, party leaders made a deal. Sensing an opportunity, the Democrats offered to accept Hayes as president if he would agree to withdraw the last national soldiers from the South. The report of the Electoral Commission threw the votes to Hayes, and Hayes removed national troops. Before doings so, he asked for a pledge that the rights of black Americans would be respected. Wade Hampton, former Confederate general and newly elected Governor of South Carolina, agreed. This pledge was immediately broken.

President Hayes, the Christian warrior for American equality, was impotent. Northern patience with Reconstruction was exhausted. The federal courts soon narrowed the meaning of the Fourteenth Amendment to a nullity. Southern states revised their constitutions and planted new devices in them by which they could effectively prohibit the black vote. In Plessy v. Ferguson (1896) the Supreme Court approved of a Louisiana law providing for “separate but equal” accommodations for black and white passengers on public transportation. The legal basis for racial discrimination by state government and indifference towards private citizens’ assaults on the civil rights of others, was established. The first phase of Reconstruction was dead.

Forrest A. Nabors is Assistant Professor of Political Science at the University of Alaska, Anchorage, a founding partner of Alyeska Venture Management, and a political news commentator. He has recently completed The Great Task of Reconstruction which is now under review for publication.

2 Responses to “1876, Rutherford B. Hayes v. Samuel Tilden: Controversy Over Election Returns In This Election – Guest Essayist: Professor Forrest Nabors”

  1. Publius Senex Dassault says:

    The Peculiar College graduates another ignorant student.

    Tilden received 4,288,546 [51%] to Hayes 4,034,311 [48%]votes.

    Tilden 184 vs. Hayes 185 EC points, after all of the extra constitutional activities.

    Shifting 452 votes in FL would have given Hays EC victory w/o the intrigue that actually occurred in the EC and Congress.

    A Hayes Elector in OR was postmaster, thus ineligible. Per OR law, the Governor substituted a Tilden Elector. The Rep. committee overruled the Governor and reinstated the ineligible elector after he resigned as postmaster.

    One committee member was Justice Davis, a Lincoln appointee who regarded as a political independent, … widely respected as fair & nonpartisan.” was appointed to Congress by IL legislature before the commission met and ruled ineligible. He was replaced by Justice Bradly, an independent leaning Republican.

    The negotiated settlement set aside the EC process with intrigue, which is what the Framers wanted to avoid.

    “The app’ment to great offices, when the Legislre might feel many motives, not common to the public confidence was surely misplaced. This branch of business it was notorious, was most corruptly managed of any that had been committed to legislative bodies.” Wilson, 7/17/1787.

    “Besides the general influence … of the Executive,
    1. the election of the Chief Magistrate would agitate & divide the legislature so much that the public interest would materially suffer by it. Public bodies are always apt to be thrown into contentions, but into more violent ones by such occasions than by any others.
    2. the candidate would intrigue with the Legislature, would derive his appointment from the predominant faction, and be apt to render his administration subservient to its views.” Madison, 7/25/1787

    “I have ever considered the constitutional mode of election…as the most dangerous blot on our constitution, and one which some unlucky chance will some day hit.” Jefferson, 1823. It hit in 1824 & again in 1876.


  2. Publius Senex Dassault says:

    “Can we forget for whom we are forming a government? Is it for men, or for the imaginary beings called States?” James Wilson, author of U.S. Constitution. 30 June 1787.

    “the electors must become acquainted with the sentiments of their constituents, and the people come to a knowledge of the opinions of the electoral candidates. . . . Let the people then choose their electors with a view to the ultimate choice.” The Aurora newspaper, 1796:

    “the electors are the organs who, acting from a certain and unquestioned knowledge of the choice of the people, by whom they themselves were appointed, and under immediate responsibility to them, select and announce those particular citizens [who bear the stamp of public confidence], and affix to them by their votes an evidence of the degree of public confidence that is bestowed upon them.” Representative John Clopton of Virginia, 1803

    “the election of a President of the United States is no longer that process which the Constitution contemplated.” Rufus King, delegate to Federal Convention, 1816

    “I have ever considered the constitutional mode of election…as the most dangerous blot on our constitution, and one which some unlucky chance will some day hit.” Thomas Jefferson to George Hay, 1823.

    “The present rule of voting for President…is so great a departure from the Republican principle of numerical equality…and is so pregnant also with a mischievous tendency in practice, that an amendment of the Constitution on this point is justly called for by all its considerate and best friends.” James Madison to George Hay. 1823.

    “I wrote in defense of the E.College in 2000, but … Upon reconsideration, I think the critics have the better argument. If the Electoral College didn’t exist, no one would invent it. …” Steve Chapman. 8/172004

    The 1876 EC’s most peculiar result enabled, not prevented many of the Founder’s concerns while extending discrimination. Honor the Framers, fix the compromise they ultimately rejected.

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