Chapter C: K. Foote to S. J. Tilden (3)

"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_.

"MY DEAR GENERAL,--I am requested to invite you to meet a few gentlemen of Kentucky, Ohio, Indiana, and possibly Tennessee, at the Galt House on the evening of the 17th instant, the evening before our State convention. It is proposed to have such conference for the purpose of agreement. May I trouble you to let me know if you can be present? I will be here until the night of the 16th, and then at the Galt House.

"Yours truly,
"WM. C. P. BRECKENRIDGE.

"_General George W. Morgan._"

GEO. W. MORGAN TO TILDEN

(ABOUT INSIDE HISTORY OF LATE CONVENTION)

"MOUNT VERNON, OHIO, _Jan. 15, 1877_.

"MY DEAR MR. PRESIDENT,--A word as to the inside history of our late convention. Knowing the temper of our people, as a precaution against extreme action I wrote to Governor Allen, and to Hancock, of Texas, asking for letters which I could use in committee on resolutions by way of modifying of the wild advice which was certain to be given. Allen answered: 'In the present condition of things, threats of force and war would, in my judgment, very greatly prejudice our cause.'

"Hancock answered by a long letter, conservative in its tone. In conclusion he said: 'It is inconsistent with the genius of our institutions that any official position should be attained by force of arms. A result so accomplished would be a sad commentary on our statesmanship, and nothing but a correction by the people through peaceful modes would prevent our becoming Mexicanized, and the loss of republican government.'

"I read these letters to the committee. To the letter of Allen no comment was made, but Mr. Hancock's was objected to by Mr. Hurd on the ground that Hancock had been a Union man in Texas during the war. It was desired that either Mr. Cook or myself should be chairman of the committee. He declined on the ground of ill-health, and I foresaw that the tone of the resolutions was likely to be extreme.

"A sub-committee, composed of White, Heisley, Ewing, Vance, and myself, was appointed to report resolutions for the action of the full committee. The first and fifth resolutions were mine. The third was drawn by Alex. Long or Hurd. Heisley moved to strike out of that resolution all after 'will be resisted by the people.' The vote stood:

"Ayes--Heisley and Morgan.

"Noes--Ewing, Vance, and White.

"Ewing then moved to strike out all after the words 'last extremity.' The vote stood:

"Ayes--Ewing, Heisley, and Morgan.

"Noes--White and Vance.

"When the sub-committee reported to the committee, Hurd moved to amend by adding after the words 'last extremity' the words, 'even to an appeal to arms.' In the mean time Ward had been called away to preside over the convention, and some one else withdrew. The vote was nine for the amendment, eight against it. The resolution as to the national convention would have been carried by the same vote, but after a declaration in favor of an appeal to arms it was allowed to go by default. All of the speeches but my own were written and in type before the convention met. The convention struck up the 'Marseillaise,' and I took step to the music.

"I still have strong hopes of your inauguration, and if you are not our country will be in peril.

"With great respect,

Truly yours,

"GEORGE W. MORGAN."

GEORGE W. MORGAN TO HON. W. C. P. BRECKENRIDGE

"MOUNT VERNON, OHIO, _Jan. 16th, 1877_.

"DEAR SIR,--From some cause yours of the 13th instant has only this morning been received. My engagements are such as to prevent me from being with you to-morrow. All movements, political or otherwise, must have a recognized leader. Mr. Tilden is ours. I have reason to believe that the action of our convention went beyond his wishes. Mr. Pelton wrote to me just before our convention, and not long since I had a note from Mr. Hewitt. The tone of both indicate a policy less pronounced than that taken by Ohio.

"The last clause of our third resolution was adopted by one majority, and would have been rejected had not two of the committee been absent when the vote was taken. I regret that I cannot have a full exchange of views with the gentlemen to be present. My judgment is that we should defer to the views of Messrs. Tilden and Hendricks.

"Truly y'rs,
"GEORGE W. MORGAN.

"_Hon. W. C. P. Breckenridge._"

CHARLES F. ADAMS TO TILDEN

"31 PEMBERTON SQUARE, BOSTON, _16th Jan., 1877_.

"MY DEAR MR. TILDEN,--You must excuse me for failing to call on you at 11 o'cl. Monday, as you requested. The snow-storm worked a very sudden change in my plans, and I hurriedly took the morning train for Boston instead of the afternoon, as I intended.

"For the object I had in view, however, my failure to see you again is of little consequence. Mr. Godwin is fully possessed of my views, and, if they are worth anything, can present them to you.

"The point can be stated in a few words. I am impressed with the idea that the true lead to get us out of our present complication should come from the two Presidential candidates, and not from irresponsible gatherings or a Congressional town-meeting. If the candidates could agree on a practical way out of the trouble, and unite in jointly recommending it to Congress and the country, its adoption would seem inevitable. To bring this about the candidates must be put in communication with each other, the way for which is rendered perfectly simple and obvious through the friendly relations still existing between those who joined in the 5th Avenue conference of last spring.

"My own view is that nothing will satisfactorily settle this question but an appeal to the ballot. The simple, fundamental, direct, democratic appeal to the one great tribunal. If the two candidates would unite in asking to have the people decide between them the path would be plain. But I will not dilate on this, as, if you want my views in detail, Mr. Godwin can give them to you.

"Begging you again to excuse my failure to call upon you, I remain, etc.,

"Very respectfully, &c.,
"CHARLES F. ADAMS, JR."

LOUISE LIVINGSTON HUNT TO TILDEN

"(_Jan. 21, '77._)

"DEAR GOVERNOR TILDEN,--I have just received a letter from my brother in New Orleans, a portion of which I copy, because I feel sure it will interest you as an evidence of the genuine feeling at present in Louisiana.

"He says: 'Our people are in an _admirable temper_, and will do their whole duty. You will find Nichols all that you pronounce him, and I agree with you in thinking he has outshone even Hampton. The latter made a bad mistake in writing to the Pretender Hayes. Has not Mr. Tilden proved himself? Has he not led the South with consummate success until she has for the first time a fair prospect? He has, God bless him for it, shown the whole country a new future, and aroused in it the ancient spirit of truth and courage and zeal for liberty. Nowhere has he been stronger than in his perception of the capacity and will of the people, in his faith in their public virtue and attachment to free government, which ever did and ever must depend upon an honest count of the ballots lawfully cast. The change you observe in public opinion announcing his expected appearance in the Presidency will continue to grow until he is borne where he merits to be--into his great office.'

"How I wish, instead of being only a woman at such a time as this, that I were a Senator or member, endowed with the bold spirit and overruling genius of your own great ancestor! There would be quick work with the present Congress at Washington!

"Forgive me if my letter makes the one-hundredth-and-one of the day; it requires no answer. One word more before I stop. On reflection, I am certain my Uncle Randall alluded to the fact that I was the favorite niece of Mrs. Edward Livingston, my grandaunt, who died not many years since, at a very advanced age. I was very stupid not to think of this solution to the problem at once.

"Very truly yours,
"LOUISE LIVINGSTON HUNT."

THE ELECTORAL COMMISSION AND MR. TILDEN

The following statement, in the handwriting of George W. Smith, Mr. Tilden's private secretary, was from Mr. Tilden's dictation:

"Mr. Tilden's views of the policy which the Democratic party in Congress ought to pursue in respect to the counting of the electoral votes cast for President and Vice-President in 1876 were perfectly defined and freely expressed to all who consulted him long before the meeting of Congress in December of that year. It was to stand firmly and inflexibly on the unbroken series of precedents formed by the twenty-two Presidential counts from 1793 to 1872.

"While the committees of investigation in respect to Louisiana, Florida, and South Carolina, appointed by the House of Representatives, were engaged in their duties, Mr. Tilden caused a collection of all those precedents to be made and printed. At his request the Hon. John Bigelow prepared an analytical and expository introduction which was prefixed to this volume, and they were printed together by the Messrs. Appleton in the latter part of December, 1876. Mr. Marble assisted in preparing an appendix to the introduction, containing citations of authorities on the various points. This introduction was also issued separately and used in large numbers by the Democratic National Committee. It presents a clear, strong, and well-fortified statement of the position which Mr. Tilden thought the Democratic party ought to assume.

"On the 22d December two committees of the House of Representatives were appointed: the first on the powers and privileges of the House of Representatives in respect to counting electoral votes; the second to confer with a committee of the Senate on the same subject. The _Congressional Record_ of that date contains the following entry:

"'_Committee to ascertain and report what are the privileges,_ _powers, and duties of the House of Representatives in counting the votes for President and Vice-President of the United States_: Mr. Knott, of Kentucky; Mr. Sparks, of Illinois; Mr. ----, of Virginia; Mr. ----, of Pennsylvania; Mr. Burchard, of Illinois; Mr. Seelye, of Massachusetts; and Mr. Monroe, of Ohio.

"'_Committee to meet with the Senate committee as to the counting of the electoral votes for President and Vice-President_: Mr. Payne, of Ohio; Mr. Hunton, of Virginia; Mr. Hewitt, of New York; Mr. Springer, of Illinois; Mr. McCrary, of Iowa; Mr. Hoar, of Massachusetts; and Mr. Willard, of Michigan.'

"During the Christmas holidays, and for some days after the 1st of January, leading members of the House of Representatives were in New York and had interviews with Mr. Tilden. He was frank, open, and earnest in his conversations with them, and with many others, in advocating the making of an issue first in the House of Representatives and then in the Senate. He was for asserting, by formal resolution, the exclusive right of the two Houses acting concurrently to count the electoral vote and determine what should be counted as electoral votes, and for denying, also by formal resolution, the pretension then set up by the Republicans, that the president of the Senate had any lawful or constitutional right to assume that function. He was for urging that issue in debate in both Houses and before the country. He thought that if the attempt should be really made to usurp for the president of the Senate a power to make the count and thus practically control the Presidential election, the scheme would break down in process of execution, and that, in any event, it was in the interest of popular elective government not to yield to the menace of usurpation, all which actual usurpation could take for itself if completely successful.

"On the request of some member of the House of Representatives, Mr. Tilden himself drew two resolutions for the purpose of making this issue. The Democratic members of the Committee on Privileges, &c., found themselves best able to agree on the simplest form of asserting their principles and deemed that most expedient. Resolutions of that character were prepared by them, transmitted to Mr. Tilden for his advice, and returned with his approval. These resolutions were reported by the Hon. Proctor Knott, chairman of the committee. They will be found in the Congressional Record of Jan. 12, 1877. They are as follows:

"This policy seemed to have been generally agreed upon by the Democratic members of the House of Representatives, and it had been recommended persistently by Mr. Tilden for weeks to all who consulted him upon the subject.

"On the afternoon of Friday the 12th of January, Senator Barnum, passing through New York on his way home for the purpose of getting his family to take them to Washington on the following Tuesday, called on Mr. Tilden and expressed his conviction that a majority of the Senators would concur in denying the right of the president of the Senate to make the count. He had not heard a word of the proposed electoral contrivance. It was afterwards ascertained that the Democratic Senator from New York had been left in equal ignorance.

"On the evening of Saturday, 13th of January, Mr. Marble called on Mr. Tilden, found him in receipt of the McCrary House bill with the amendments proposed by Mr. Hewitt, and a letter from Mr. Hewitt informing him that his counsel would be asked the next day about this bill. Mr. Tilden and Mr. Marble sat late into the night analyzing it. Mr. Tilden invited Mr. Marble to come the next day when Mr. Hewitt should be there to consider this bill, which was supposed to be the axis upon which the deliberations of the House were revolving.

"Mr. Marble was therefore present on the following day, which was the 14th of January, when Mr. Tilden received from Mr. Hewitt his first information that the other measures had been abandoned, and that the subject upon which he wished to confer was the Electoral bill.

"Before he read the new bill Mr. Tilden was told that the Democratic members of the Senate committee were already absolutely committed to this bill, and would concur with the Republican members of the committee in reporting it to the Senate whether the House committee should concur or not.

"'Is it not rather late, then, to consult me?' said Mr. Tilden.

"'They do not consult you,' replied Mr. Hewitt. 'They are public men and have their own duties and responsibilities. I consult you.'

"The examination and analysis of the bill then proceeded. Mr. Tilden said, in the progress of the conference, 'I can't advise you to agree to the bill. I will advise you as to its details.'

"In respect to the provision by which six judges were to be described in the bill and one of them to be eliminated by lot, Mr. Tilden said, emphatically, 'I may lose the Presidency, but I will not raffle for it.'

"Mr. Tilden further said, if an arbitration were to be adopted, the tribunal ought to be fixed in the bill itself and not left to chance or intrigue.

"He said, also, that if an arbitration were to be adopted, the duty of the arbitrators to investigate and decide the case on its _merits_ should be made mandatory and not left as a question of construction.

"With both the vital points, the choice of men to compose the tribunal and a function to be performed by the tribunal, left at loose ends, he treated the whole thing as a sort of gamble.

"In the course of the discussion Mr. Tilden said: 'If you go into a conference with your adversary and can't break off because you feel you must agree to something you cannot negotiate--you are not fit to negotiate. You will be beaten upon every detail.'

"Replying to the apprehensions of a collision of force with the executive, Mr. Tilden thought them exaggerated, but said: 'Why surrender now? You can always surrender. Why surrender before the battle, for fear you may have to surrender after the battle is over?'

"Mr. Tilden was pressed to say that if the bill could be modified so as to fix the five judges by a position provision, he would give it his approval, and it was urged that a modification could not succeed unless it was stated that that would make the bill acceptable. He firmly declined.

"Mr. Hewitt stated that the committees of the two Houses were to meet that evening at the house of Senator Bayard, and that he was expected to telegraph them the result of his interview.

"It was perfectly evident that what was sought was not Mr. Tilden's advice, but Mr. Tilden's adhesion. His refusal to give it caused the meeting for that evening to fall through.

"Mr. Tilden condemned the proposed action as precipitate. It was a month before the time for the count, and he saw no reason why there should not be an opportunity afforded for consideration and consultation by the representatives of the people. He treated it as a panic in which they were liable to act in haste and repent at leisure. He did not ask any time for himself or time to decide what he would do in respect to the proposed means. He never for a moment evinced the slightest hesitation or doubt about that; he was clear and inflexible, but he advised more deliberation upon the part of those who were to act in Washington. He believed in publicity and discussion and a wider consultation. He had an inherent and incurable distrust of the scheme, and has frequently said since that so great a stake as the government of forty millions of people with immense civil expenditures and a hundred thousand office-holders to be disposed of by a small body sitting in the Capitol would become the sport of intrigue or fraud.

"Mr. Tilden also disapproved of the secrecy with which the proceedings were shrouded. He thought it unwise to compromise the rights of the members of the two Houses without consulting them, by taking a hasty step which left no different policy practicable than the one thus imposed. Two days later, in a telegram to Mr. Hewitt, he expressed himself again and decidedly on this subject.

"In the whole of this conference Mr. Tilden was never asked to advise what the two committees should do jointly or what the Senate committee should do. He was expressly and repeatedly told that the Senate committee, including the Democratic members, Messrs. Bayard, Thurman, and Ransom, had already determined upon their course whatever his advice or wishes might be. The difficulty on the part of the House committee, in carrying out an independent policy, was pressed upon him as a reason for advising their acquiescence. No argument or persuasion could extract from him a word of personal sanction to the scheme. If, however, it was to be adopted, if it was a foregone conclusion, he manifested a desire that the provisions of the bill should be made to operate as much good and as little mischief as possible, both in their legal effect and in the manner of their execution. He was willing to advise and help in respect to specific provisions, but took care, in doing so, not incidentally to adopt the bill.

"The next day, Jan. 15th, Mr. Hewitt telegraphed from Washington to Mr. Edward Cooper:

"'WASHINGTON, _Jany. 15, 187-_.

"'To E. C.

"'The Senate committee will probably reject five- and report
six-judge plan immediately. Our Senators feel committed to
concur. House committee will not concur, and for present will
probably not report.'

"The answer was as follows:

"'N. Y. _Jany. 15, 187-_.

"'To A. S. H.

"'Procrastinate to give few days for information and
consultation. The six-judge proposition inadmissible.

"'E. C.'

"On the following day Mr. Hewitt telegraphed again:

"'WASHINGTON, _Jany. 16, 187-_.

"'To E. C.

"'After protracted negotiations Senator receded from six-judge.
Declined five-judge and offered four senior associate justices
who are to choose the fifth judge excluding chief justice. Our
Senate friends earnestly favor acceptance, because they don't
believe it possible to pass over Field. The Democrats on the
House committee believe this is the last chance of agreement.
We cannot postpone beyond eleven to-morrow, and if we decline
Senate committee will report their original plan to which our
friends are committed. Telegraph your advice.'

"To this telegram the following answer was sent:

"'N. Y., _Jany. 17, 2 a.m._

"'Be firm and cool. Four-judge plan will not do. Perhaps worse
than six. Complaints likely to arise of haste and want of
consultation with members, and embarrassment in exercise of
their judgment after plan is disclosed by premature committal
of their representatives. There should be more opportunity for
deliberation and consultation. Secrecy dangerous; probably
mistake in itself, and if it results in disaster would involve
great blame and infinite mischief.'

"In the evening of Tuesday, the 16th of January, Mr. Marble went to see Mr. Tilden and found him in his library. Several other gentlemen were present. The foregoing telegrams were read. The situation was freely canvassed. In their presence, Mr. Tilden dictated another and longer telegram, which was sent to the committee-room for transmission to Washington. As it was translated into cypher at the committee rooms and had to be retranslated at Washington, it was not delivered until after the committees had taken definitive action. It was not addressed to Mr. Hewitt and therefore was not seen by him. The only value of this telegram now is as a record made at the time in the presence of half a dozen well-known gentlemen, of Mr. Tilden's views, similar to those he had habitually expressed and somewhat fuller than in the other telegrams.

"Mr. Marble having seen all these telegrams at the time, and being familiar with them, requested copies for the present occasion. In assenting to that request, Mr. Tilden desired Mr. Marble, in any use he might make of them, to say explicitly that Mr. Tilden has never doubted Mr. Hewitt's perfect good faith in the transaction to which the telegrams relate, and believes him to have been actuated by the most patriotic motives.

_"'Jany. 17, 1877 Midnight_.

"'No need of hot haste, but much danger in it. Some days'
interval should be taken; the risk of publicity harmless. No
information here nor any opportunity to get information which
could justify abstinence from condemning such an abandonment
of the Constitution and practice of the government, and of the
rights of the two Houses and of the people. Nothing but great
and certain public danger not to be escaped in any other way
could excuse such a measure. We are overpressed by exaggerated
fears and forget that the other side will have greater troubles
than we unless relieved by some agreement. They have no way
out but by usurpation; are bullying us with what they dare not
do or will break down in attempting. So long as we stand on
the Constitution and settled practice we know where we are.
Consequences of new expedient not enough considered. Only way of
getting accessions in the Senate is by House standing firm--and
judicious friends believe in that case we will go safely
through. Opportunity to consult such friends should be given
before even tacit acquiescence, if that is contemplated. Though
details may be properly discussed, final committal by House
committee should be firmly withheld.'"

THE HAYES FRAUD AND THE LOUISIANA LOTTERY

(_From the "Sun," Friday, November 20, 1891._)

"We print elsewhere an interesting review of the events which have brought the Louisiana Lottery question to its present familiar phase.

"According to this statement, which is verifiable so far as it deals with the open facts of history, one of the most powerful influences in enabling Mr. R. B. Hayes to carry out the infamous political bargain which was the result of the Wormley conference, was that of the Louisiana Lottery.

"The representatives of Mr. Hayes secured the completion of the electoral count at Washington in 1877 by pledging the fraudulent administration, in advance, to do certain things desired by certain Southern Democrats. One of these things was to accomplish the overthrow of Packard in Louisiana, although Packard had received for Governor in that State a vote larger than Hayes' for President.

"When Mr. Hayes was seated in the office to which he had not been elected, he proceeded to redeem the promises made in his behalf by Stanley Matthews and Charles Foster. But he was able to fulfil his part of the bargain mainly through the intervention of the Lottery Company, which furnished at New Orleans a sufficient number of Republican legislators elect, willing to join with the Democrats in organizing the Legislature that destroyed Packard and seated Nicholls.

"Thus the bargain was carried out upon Mr. Hayes' side by the assistance of the concern once powerfully described by the Hon. Benjamin Harrison as the Great Beast. And to that service on the part of the Great Beast, according to our correspondent's recital of the facts, the Louisiana Lottery owes in return its present position of advantage in the State.

"Is there any doubt as to the pledge to overthrow Packard, which the Great Beast helped Hayes to redeem? Mr. William H. Roberts of New Orleans, among others, has testified that when the electoral count was pending, he received this assurance from a distinguished Republican statesman and a close personal friend of Mr. Hayes:

"'You need not be uneasy. I see that you are all restless and nervous; I see that Blackburn and those men are controlling the Southern men. I assure you that it will be all right; and when I assure you that you are to have your State government, you ought to know me well enough to know that I am telling you the truth.'"

* * * * *

The distinguished Republican statesman and personal friend of Hayes was the Hon. Charles Foster, of Fostoria, Secretary of the Treasury under the administration of the Great Beast's enemy, the Hon. Benjamin Harrison.

Is there any doubt as to the understanding of the pledge by the Southern Democrats who were active in arranging the bargain, afterwards carried out by Hayes with the aid of the Louisiana Lottery? "If we should lose the national government we may be able to save Louisiana," said the Hon. Lucius Q. C. Lamar to Mr. Roberts of New Orleans early in the progress of the negotiations. And later, when certain Democrats in the House were proposing to stand out to the last against the consummation of the fraud, Judge Lamar sent to one of their number, the Hon. John Ellis of Louisiana, this letter of vindication and appeal:

"I have just learned from an unquestionable authority, which
I will give, if you wish it, that Foster said to a gentleman,
my informant, that the speech he made to-day, which so
significantly but indirectly hints at Hayes' Southern policy,
that he made it after consultation with Mr. Matthews, Mr. Hayes'
brother-in-law, and Mr. Matthews told him and urged him to
say squarely that Hayes would have nothing to do or to say to
Packard.

"Now, Ellis, this is the first thing I have ever heard as coming
from Hayes, directly or indirectly, that is worth acting upon by
any Southern man. We do not want offices, but we do want to get
our States and our people free from the carpet-bag government.
Ought you not, if an available opportunity offers you to serve
your State and people, to spring forward at once and see if
you can't free your State? I think you should at once see
Mr. Stanley Matthews and ask him if Governor Hayes will give
you some assurance that he will not nominate Packard in his
domination of your people."

This Judge Lamar is the gentleman who afterwards served as a member of Mr. Cleveland's cabinet, and who received from Mr. Cleveland an appointment to the bench of the Supreme Court of the United States.

BIGELOW TO JUDGE STEPHEN J. FIELD

(AN ADDRESS OF THE MINORITY OF THE ELECTORAL COMMISSION)

"21 GRAMERCY PARK, _January 31, 1894_.

"HON. STEPHEN J. FIELD.

"MY DEAR JUDGE,--The son of Judge Josiah Gardner Abbott, of Mass., handed me a few days since in Boston a copy of the proposed address of the minority of the electoral commission of 1877 protesting against the decisions of the majority of that commission. At the close of this address, or somewhere on it, was the following endorsement:

"'This address was drawn up at the request of some of the minority members of the electoral commission, to whom it was submitted and approved by them. But some doubted the wisdom of publishing the address at the time, and so it was not signed.

"'(Signed) J. G. ABBOTT.'

"I would like much to know if the Democratic minority concurred in this protest, and the reasons which decided them or any of them against its publication. I am expecting to be delivered one of these days of something about that electoral commission, and, of course, I would like to speak of this address, if at all, by the book. I would like, also, to know if you can tell me why Judge Abbott refused to allow of the publication in his lifetime; if there was any other reason than that it was never signed.

"I hope you will think these questions will involve matters of sufficient gravity to warrant me in troubling you for an answer which no one else that I know can give.

"Yours very truly,
"JOHN BIGELOW."

STEPHEN J. FIELD TO BIGELOW

"SUPREME COURT OF THE UNITED STATES,
"WASHINGTON, D. C., _February 2, 1894_.

"HON. JOHN BIGELOW.

"DEAR SIR,--Your letter of the 31st of January was received yesterday. You state that the son of the late Judge Josiah Gordon Abbott, of Massachusetts, had handed to you a few days before, in Boston, a copy of 'The proposed address of the minority of the electoral commission of 1877, protesting against the decision of the majority of that commission,' and add that at the close of the address, or somewhere in it, was the following endorsement: 'This address was drawn up at the request of some of the minority members of the electoral commission, to whom it was submitted and approved by them; but some doubted the wisdom of publishing the address at the time, and so it was not signed. (Signed) J. G. ABBOTT.'

"You express a wish to know if the Democratic minority concurred in this protest, and the reasons which decided them, or any of them, against its publication. In answer to your inquiry, I would state that I remember very well the preparation of the address undertaken by Mr. Abbott, the draft of which was submitted to me and approved, and I supposed then that it would receive the signatures of all the members of the Democratic minority and be published. Soon afterwards Mr. Abbott informed me that some of the members of the minority had expressed a doubt of the wisdom of publishing the address at that time. It was not, therefore, signed. I know of no other reason. None was given that I can recall except the existence of the doubt mentioned.

"Perhaps Mr. Bayard could give you more definite information upon this point. I know that it was a disappointment to me that the address, either as prepared, or as it might be amended by suggestions of members of the Democratic minority, was not published.

"I think that when the members of the commission separated it was Mr. Abbott's intention to prepare some document with reference to the action of the commission for publication, with the consent of other members of the minority, but that intention was subsequently abandoned by him for reasons which I cannot state.

"You also state that you would like to know if I could tell you why Judge Abbott refused to allow of the publication in his lifetime. I know of none except the fact that the document was never signed. Some years afterwards, when Mr. Abbott was at Washington, he expressed to me a regret that the document which he had prepared had not been signed and published.[19]

"I am very respectfully yours,
"STEPHEN J. FIELD."

[19] For a copy of the protest referred to in the preceding letter,
see Bigelow's _Life of Tilden_, Vol. II., Appendix A.

The following letter, received in reply to one addressed to its writer by Mr. George W. Smith, one of the executors and trustees of Mr. Tilden's estate, gives the substance of a very important statement bearing upon the election for President in Louisiana in '76, the authorship of which statement, however, is suppressed in compliance with the request and for the reasons assigned by the one who heard it. As the gentleman, whose name is here left blank, has long been dead, it is permissible to say that he was quite the most prominent Republican politician in Louisiana at the time the statement purports to have been made.

A. M. WILCOX TO G. W. SMITH

"BRIGHTON, ENGLAND, _April 19th, '94_.

"DEAR MR. SMITH,--Your letter of April 4th came this morning, having been forwarded from home.

"The letter you speak of is not in existence, having been destroyed when I broke up my home ten years ago. It was not from Kellogg, but from ----. That part referring to the election read about as follows:

"'You ask as to the election. Tilden carried the State by 9 to 14,000 (I am not positive as to the figures, either may be wrong), but this will be overcome in some way; how has not as yet been decided, but you can be certain the State will be returned for Hayes.'

"I cannot be mistaken as to the substance of his letter, as it made a deep impression on me at the time. Had it not been personal and _confidential_, I should have given it publicity at the time.

"In case Mr. Bigelow should make any use of it--the information--kindly see that he avoids using ----'s name for the reasons above given.

"I sincerely regret I cannot produce the letter itself or make a more satisfactory reply to your inquiry.

"Mrs. Wilcox formerly resided in Louisiana, and ---- was a frequent guest at her father's house, which explains the frankness of his answer to her letter asking for information in the matter.

"With my best wishes to you.

"Very truly,
"A. M. WILCOX."

WILLIAM BIGLER TO TILDEN

"CLEARFIELD, PA., _Jan. 24th, 1877_.

"MY DEAR SIR,--After a careful examination of all the plans of adjusting the Presidential embroglio at Washington, I came to the conclusion that the plan reported by the committee is the best--most certain to promote the peace and dignity of the country, and to secure your inauguration as President. In the first place it involves an abandonment of the plea for the right of the president of the Senate, and in the next it recognizes the right of the commission to go behind the certificates on an allegation of fraud. Besides, I have special confidence in one of the judges who will be selected as a Republican. He will be just and impartial in his action, with slight inclination to our side.

"The difficulty in the way of the power of the House consists in the obstacles that can be interposed against reaching the point at which that power can be safely and properly exercised. The order laid down in the Constitution must be followed. First, the certificates shall be opened. Second, the vote shall then be counted. Third, if there has been a failure to elect by the States then the House shall immediately proceed to elect a President. The counting will go on smoothly until Florida is reached, and then objection will be made and the Senate will retire. It will decide to count the vote for Mr. Hayes, and the House will reject the vote or count it for you, and then when will they come together again? Perhaps at the end of a week the House may give up Florida to go on with the count and then will come Louisiana, and this the House cannot yield without losing everything. Some say at this point the House should proceed to elect a President, but the vote has not been counted as the Constitution requires, and the assumption that there has been no election in the face of the fact that there are but two candidates, and that it is not possible to so divide the vote as to have a tie, cannot be overlooked. The plan of conceding everything but Oregon, which comes last, has been favored by some. My own impression is that you will become President by the rejection of the vote of Louisiana. That will be done by the commission, and may be done by a vote of the Senate. I think the vote in the Senate, taken at any time, would be very close on the rejection of the vote of Louisiana.

"The danger now is that the plan of the committees will be defeated by persistent debate. I have no fear of Grant. At present he would sign the bill.

"I should have remained at Washington but for an imperious demand for me in a business matter at this place.

"With much esteem I remain,

"Your friend,
"WM. BIGLER.

"Florida is becoming so clear for you that the whole matter may yet be settled by that State."

TILDEN TO GOVERNOR WADE HAMPTON

"NEW YORK, _Feb. 3, 1877_.

"DEAR GOV. HAMPTON,--I have just emerged from ten days of exceptional intensity of pressure in occupations, which at best were not light. During this time your letter of the 22d Jany. arrived. It does not seem to me more than two or three days since I first saw it, but my count of time may have been imperfect.

"Certain I am that I take my first interval to acknowledge it and to reply.

"One only of the newspaper publications which you mentioned had come under my observation; and that I had cursorily looked at rather than read.

"It is enough to say that none of these criticisms has made the least impression on my mind unfavorable to your perfect good faith in your political actions or relations, or to my confidence in your friendly disposition toward me. You were quite right in thinking, as you say, that an explanation was unnecessary, though for great caution you have chosen to write to me on the subject. I have not only faith in you, but great admiration for your personal bearing under difficult and trying circumstances. I have no element of suspicion in my nature, and have looked on the recent contest in no selfish aspect, not even in that refined form which thinks of the honor of being associated with the right in so great a cause. And I appreciate the wrongs to which the people of your State have been subjected.

"I beg, my dear sir, that you will excuse my great haste and believe me,

Very truly your friend,
"S. J. TILDEN."

THOMAS COTTMAN TO S. J. TILDEN

"343 FIFTH AVENUE, NEW YORK, _Feby. 22d, 1877_.

"GOVR. SAML. J. TILDEN.

"MY DEAR SIR,--Your card of this morning confirms my opinion that the defeat of the Democratic party is due measurably to the manipulation of inexperienced or overconfident directors. I hope you will insist on Chandler's exhibit, now they have made all possible mischief out of your account. There has been too much willingness on the part of the Democrats to compromise, and Senator Kernan to say the least of it has acted unwisely. Patrick Kennedy's[20] testimony fully substantiates my views in regard to Louisiana--Wells has been unskilfully handled. But there is no use in crying over spilt milk.

[20] The testimony of Kennedy referred to by Mr. Cottman follows:

WASHINGTON, February 21.--Patrick J. Kennedy, of Jefferson
Parish, testified to-day to an interview with Governor Wells, in
which the latter said that he thought he had done wrong in throwing
out 1,100 votes in New Orleans and 1,400 votes in the Parish of East
Baton Rouge. He also asked what guarantee Kennedy supposed would
be given him if he so arranged the returns as to protect him and
secure him his property and standing among the people of the State
of Louisiana.

"The 'occasional correspondent' in the _Herald_ of this morning overstates the case in reference to dissatisfaction in the party. But of its existence no one can doubt. Not so much South as here and in the West, and from a totally different cause from that assigned in the _Herald_. I had opportunities [of] observing it, and exerted my utmost power to assuage or avert it. There is no necessity now for adverting to the cause, but I will simply remark that the old Hunkers considered themselves ignored to give prominence to Barnburners and new men, personal favorites--and that feeling at one time came near losing you this city and Brooklyn. I have never doubted the feasibility of obtaining a _fair and honest return_ of the vote in Louisiana, if the proper means were resorted to which in no wise included pecuniary consideration. It was a political question and political consideration was desired as testified by P. I. Kennedy, who is a very different man from Dr. Hugh Kennedy, whose name Wells offered as the fifth man on the Returning Board, and had laid on the table for future action. Whenever I mentioned the subject to those in _authority here_, I was met with the information that Genl. Taylor was _here_ looking to Louisiana. Genl. Taylor is a very estimable gentleman, but most cordially hated by both Wells and Kennedy. When I reflect on the management '_here_,' I can only say you were slaughtered in the house of your friends: not from design, for I believe they were honest and true, zealous and uncompromising, but conceited from the want of experience in politics; not the want of capacity, but an overweening confidence in themselves and the justice of their case. In the name of Louisiana, I unhesitatingly repudiate the assertion of the _Herald's_ occasional correspondent of an indifference towards your election. She cast her vote for you, and it would have been so returned if your lieutenants here had not overestimated their powers.

"Very truly your obt. servt.,
"THOS. COTTMAN."

N. W. HAZEN TO S. J. TILDEN

"ANDOVER, _Feb. 28, 1877_.

"HON. SAMUEL J. TILDEN.

"DEAR SIR,--I hope it is not too late to make some use of the views stated in the paper enclosed, which seem to me so obvious that I have constantly hoped to see them presented from some one of many sources.

"Very respectfully,
"Your obt. servt.,
"N. W. HAZEN."

* * * * *

Whenever it appeared to Congress that no person had a majority of the electoral votes, the whole subject of the election of President, by force of the Twelfth Amendment, passed into the exclusive jurisdiction of the House, and no proposals for joint proceedings, or for any action by the Senate in relation to it were in order.

That no person had a majority appeared from the double returns from some of the States from the opening of the returns, and is admitted by the passage of the electoral law.

The choice being given to the House by the Constitution, it belonged to the House solely to make any investigations which it should find necessary to the proper performance of this trust.

When the Constitution gives the choice to the House, it confers by necessary implication whatever authority is requisite to the full exercise of the power, including, of course, exclusive control over the whole subject.

It may be remarked, by way of illustration, that the first duty is to determine who are the three persons from whom a choice is to be made: acting with the Senate, a fourth person might be rejected from this number, whom, if he were before it, a majority of the House might choose to elect.

The record of the proceedings of the commission will show them to be without warrant or authority in the Constitution, which contains ample provision upon the same subject.

The commission usurps a power conferred upon the House when the House itself was established, which is one of its highest functions, and whose exercise it cannot surrender without dishonor.

1. Upon the motion to be made in the House to accept the report of the commission it should not be entertained, because in violation of the constitutional rights of the House, and not in order therefore.