ELECTORAL COMMISSION

electoral commission, in united states history, a commission created to settle the disputed presidential election of 1876. in this election samuel j. tilden, the democratic candidate, received 184 uncontested electoral votes, and rutherford b. hayes, the republican candidate, 163.[1] the states of florida, louisiana, oregon and south carolina, with a total of 22 votes, each sent in two sets of electoral ballots,[2] and from each of these states except oregon one set gave the whole vote to tilden and the other gave the whole vote to hayes. from oregon one set of ballots gave the three electoral votes of the state to hayes; the other gave two votes to hayes and one to tilden. the election of a president is a complex proceeding, the method being indicated partly in the constitution, and being partly left to congress and partly to the states. the manner of selecting the electors is left to state law; the electoral ballots are sent to the president of the senate, who "shall, in the presence of the senate and house of representatives, open all certificates, and the votes shall then be counted." concerning this provision many questions of vital importance arose in 1876: did the president of the senate count the votes, the houses being mere witnesses; or did the houses count them, the president's duties being merely ministerial? did counting imply the determination of what should be counted, or was it a mere arithmetical process; that is, did the constitution itself afford a method of settling disputed returns, or was this left to legislation by congress? might congress or an officer of the senate go behind a state's certificate and review the acts of its certifying officials? might it go further and examine into the choice of electors? and if it had such powers, might it delegate them to a commission? as regards the procedure of congress, it seems that, although in early years the president of the senate not only performed or overlooked the electoral count but also exercised discretion in some matters very important in 1876, congress early began to assert power, and, at least from 1821 onward, controlled the count, claiming complete power. the fact, however, that the senate in 1876 was controlled by the republicans and the house by the democrats, lessened the chances of any harmonious settlement of these questions by congress. the country seemed on the verge of civil war. hence it was that by an act of the 29th of january 1877, congress created the electoral commission to pass upon the contested returns, giving it "the same powers, if any" possessed by itself in the premises, the decisions to stand unless rejected by the two houses separately. the commission was composed of five democratic and five republican congressmen, two justices of the supreme court of either party, and a fifth justice chosen by these four. as its members of the commission the senate chose g.f. edmunds of vermont, o.p. morton of indiana, and f.t. frelinghuysen of new jersey (republicans); and a.g. thurman of ohio and t.f. bayard of delaware (democrats). the house chose henry b. payne of ohio, eppa hunton of virginia, and josiah g. abbott of massachusetts (democrats); and george f. hoar of massachusetts and james a. garfield of ohio (republicans). the republican judges were william strong and samuel f. miller; the democratic, nathan clifford and stephen j. field. these four chose as the fifteenth member justice joseph p. bradley, a republican but the only member not selected avowedly as a partisan. as counsel for the democratic candidate there appeared before the commission at different times charles o'conor of new york, jeremiah s. black of pennsylvania, lyman trumbull of illinois, r.t. merrick of the district of columbia, ashbel green of new jersey, matthew h. carpenter of wisconsin, george hoadley of ohio, and w.c. whitney of new york. w.m. evarts and e.w. stoughton of new york and samuel shellabarger and stanley matthews of ohio appeared regularly in behalf of mr hayes. the popular vote seemed to indicate that hayes had carried south carolina and oregon, and tilden florida and louisiana. it was evident, however, that hayes could secure the 185 votes necessary to elect only by gaining every disputed ballot. as the choice of republican electors in louisiana had been accomplished by the rejection of several thousand democratic votes by a republican returning board, the democrats insisted that the commission should go behind the returns and correct injustice; the republicans declared that the state's action was final, and that to go behind the returns would be invading its sovereignty. when this matter came before the commission it virtually accepted the republican contention, ruling that it could not go behind the returns except on the superficial issues of manifest fraud therein or the eligibility of electors to their office under the constitution; that is, it could not investigate antecedents of fraud or misconduct of state officials in the results certified. all vital questions were settled by the votes of eight republicans and seven democrats; and as the republican senate would never concur with the democratic house in overriding the decisions, all the disputed votes were awarded to mr hayes, who therefore was declared elected. the strictly partisan votes of the commission and the adoption by prominent democrats and republicans, both within and without the commission, of an attitude toward states-rights principles quite inconsistent with party tenets and tendencies, have given rise to much severe criticism. the democrats and the country, however, quietly accepted the decision. the judgments underlying it were two: (1) that congress rightly claimed the power to settle such contests within the limits set; (2) that, as justice miller said regarding these limits, the people had never at any time intended to give to congress the power, by naming the electors, to "decide who are to be the president and vice-president of the united states." there is no doubt that mr tilden was morally entitled to the presidency, and the correction of the louisiana frauds would certainly have given satisfaction then and increasing satisfaction later, in the retrospect, to the country. the commission might probably have corrected the frauds without exceeding its congressional precedents. nevertheless, the principles of its decisions must be recognized by all save ultra-nationalists as truer to the spirit of the constitution and promising more for the good of the country than would have been the principles necessary to a contrary decision. by an act of the 3rd of february 1887 the electoral procedure is regulated in great detail. under this act determination by a state of electoral disputes is conclusive, subject to certain formalities that guarantee definite action and accurate certification. these formalities constitute "regularity," and are in all cases judgable by congress. when congress is forced by the lack or evident inconclusiveness of state action, or by conflicting state action, to decide disputes, votes are lost unless both houses concur. authorities.--j.f. rhodes, _history of the united states_, vol. 7, covering 1872-1877 (new york, 1906); p.l. haworth, _the hayes-tilden disputed presidential election of 1876_ (cleveland, 1906); j.w. burgess, _political science quarterly_, vol. 3 (1888), pp. 633-653, "the law of the electoral count"; and for the sources. senate miscellaneous document no. 5 (vol. 1), and house miscel. doc. no. 13 (vol. 2), 44 congress, 2 session,--_count of the electoral vote. proceedings of congress and electoral commission_,--the latter identical with _congressional record_, vol. 5, pt. 4, 44 cong., 2 session; also about twenty volumes of evidence on the state elections involved. the volume called _the presidential counts_ (new york, 1877) was compiled by mr. tilden and his secretary. footnotes: [1] the election of a vice-president was, of course, involved also. william a. wheeler was the republican candidate, and thomas a. hendricks the democratic. [2] a second set of electoral ballots had also been sent in from vermont, where hayes had received a popular majority vote of 24,000. as these ballots had been transmitted in an irregular manner, the president of the senate refused to receive them, and was sustained in this action by the upper house. electors (ger. _kurfursten_, from _kuren_, o.h.g. _kiosan_, choose, elect, and _furst_, prince), a body of german princes, originally seven in number, with whom rested the election of the german king, from the 13th until the beginning of the 19th century. the german kings, from the time of henry the fowler (919-936) till the middle of the 13th century, succeeded to their position partly by heredity, and partly by election. primitive germanic practice had emphasized the element of heredity. _reges ex nobilitate sumunt_: the man whom a german tribe recognized as its king must be in the line of hereditary descent from woden; and therefore the genealogical trees of early teutonic kings (as, for instance, in england those of the kentish and west saxon sovereigns) are carefully constructed to prove that descent from the god which alone will constitute a proper title for his descendants. even from the first, however, there had been some opening for election; for the principle of primogeniture was not observed, and there might be several competing candidates, all of the true woden stock. one of these competing candidates would have to be recognized (as the anglo-saxons said, _geceosan_); and to this limited extent teutonic kings may be termed elective from the very first. in the other nations of western europe this element of election dwindled, and the principle of heredity alone received legal recognition; in medieval germany, on the contrary, the principle of heredity, while still exercising an inevitable natural force, sank formally into the background, and legal recognition was finally given to the elective principle. _de facto_, therefore, the principle of heredity exercises in germany a great influence, an influence never more striking than in the period which follows on the formal recognition of the elective principle, when the habsburgs (like the metelli at rome) _fato imperatores fiunt: de jure_, each monarch owes his accession simply and solely to the vote of an electoral college. this difference between the german monarchy and the other monarchies of western europe may be explained by various considerations. not the least important of these is what seems a pure accident. whereas the capetian monarchs, during the three hundred years that followed on the election of hugh capet in 987, always left an heir male, and an heir male of full age, the german kings again and again, during the same period, either left a minor to succeed to their throne, or left no issue at all. the principle of heredity began to fail because there were no heirs. again the strength of tribal feeling in germany made the monarchy into a prize, which must not be the apanage of any single tribe, but must circulate, as it were, from franconian to saxon, from saxon to bavarian, from bavarian to franconian, from franconian to swabian; while the growing power of the baronage, and its habit of erecting anti-kings to emphasize its opposition to the crown (as, for instance, in the reign of henry iv.), coalesced with and gave new force to the action of tribal feeling. lastly, the fact that the german kings were also roman emperors finally and irretrievably consolidated the growing tendency towards the elective principle. the principle of heredity had never held any great sway under the ancient roman empire (see under emperor); and the medieval empire, instituted as it was by the papacy, came definitely under the influence of ecclesiastical prepossessions in favour of election. the church had substituted for that descent from woden, which had elevated the old pagan kings to their thrones, the conception that the monarch derived his crown from the choice of god, after the manner of saul; and the theoretical choice of god was readily turned into the actual choice of the church, or, at any rate, of the general body of churchmen. if an ordinary king is thus regarded by the church as essentially elected, much more will the emperor, connected as he is with the church as one of its officers, be held to be also elected; and as a bishop is chosen by the chapter of his diocese, so, it will be thought, must the emperor be chosen by some corresponding body in his empire. heredity might be tolerated in a mere matter of kingship: the precious trust of imperial power could not be allowed to descend according to the accidents of family succession. to otto of freising (_gesta frid._ ii. 1) it is already a point of right vindicated for itself by the excellency of the roman empire, as a matter of singular prerogative, that it should not descend _per sanguinis propaginem, sed per principum electionem_. the accessions of conrad ii. (see wipo, _vita cuonradi_, c. 1-2), of lothair ii. (see _narratio de electione lotharii_, m.g.h. _scriptt._ xii. p. 510), of conrad iii. (see otto of freising, _chronicon_, vii. 22) and of frederick i. (see otto of freising, _gesta frid._ ii. 1) had all been marked by an element, more or less pronounced, of election. that element is perhaps most considerable in the case of lothair, who had no rights of heredity to urge. here we read of ten princes being selected from the princes of the various duchies, to whose choice the rest promise to assent, and of these ten selecting three candidates, one of whom, lothair, is finally chosen (apparently by the whole assembly) in a somewhat tumultuary fashion. in this case the electoral assembly would seem to be, in the last resort, the whole diet of all the princes. but a _de facto_ pre-eminence in the act of election is already, during the 12th century, enjoyed by the three rhenish archbishops, probably because of the part they afterwards played at the coronation, and also by the dukes of the great duchies--possibly because of the part they too played, as vested for the time with the great offices of the household, at the coronation feast.[1] thus at the election of lothair it is the archbishop of mainz who conducts the proceedings; and the election is not held to be final until the duke of bavaria has given his assent. the fact is that, votes being weighed by quality as well as by quantity (see diet), the votes of the archbishops and dukes, which would first be taken, would of themselves, if unanimous, decide the election. to prevent tumultuary elections, it was well that the election should be left exclusively with these great dignitaries; and this is what, by the middle of the 13th century, had eventually been done. the chaos of the interregnum from 1198 to 1212 showed the way for the new departure; the chaos of the great interregnum (1250-1273) led to its being finally taken. the decay of the great duchies, and the narrowing of the class of princes into a close corporation, some of whose members were the equals of the old dukes in power, introduced difficulties and doubts into the practice of election which had been used in the 12th century. the contested election of the interregnum of 1198-1212 brought these difficulties and doubts into strong relief. the famous bull of innocent iii. (_venerabilem_), in which he decided for otto iv. against philip of swabia, on the ground that, though he had fewer votes than philip, he had a majority of the votes of those _ad quos principaliter spectat electio_, made it almost imperative that there should be some definition of these principal electors. the most famous attempt at such a definition is that of the _sachsenspiegel_, which was followed, or combated, by many other writers in the first half of the 13th century. eventually the contested election of 1257 brought light and definition. here we find seven potentates acting--the same seven whom the golden bull recognizes in 1356; and we find these seven described in an official letter to the pope, as _principes vocem in hujusmodi electione habentes, qui sunt septem numero_. the doctrine thus enunciated was at once received. the pope acknowledged it in two bulls (1263); a cardinal, in a commentary on the bull _venerabilem_ of innocent iii., recognized it about the same time; and the erection of statues of the seven electors at aix-la-chapelle gave the doctrine a visible and outward expression. by the date of the election of rudolph of habsburg (1273) the seven electors may be regarded as a definite body, with an acknowledged right. but the definition and the acknowledgment were still imperfect. (1) the composition of the electoral body was uncertain in two respects. the duke of bavaria claimed as his right the electoral vote of the king of bohemia; and the practice of _partitio_ in electoral families tended to raise further difficulties about the exercise of the vote. the golden bull of 1356 settled both these questions. bohemia (of which charles