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

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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.

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