This is section thirteen

AVERTING THE CONSTITUTIONAL CRISIS

RECONSTRUCTION, REDEMPTION, AND AVERTING CONSTITUTIONAL
CRISIS:
RECONSIDERING THE COMPROMISE OF 1877

Ronald Gordon Ziegler

The often discussed election of 1876 has been referenced as a number of things, most
not very complementary. It did resolve a conflict which posed a serious threat to the
nation, but the conflict it resolved may not necessarily be that ordinarily sighted in
commentary on the contest, especially in political science and government textbooks and
the like. Daniel Boorstin has commented:

" ... The nation seemed once again on the verge of civil war. Both houses of
Congress had to approve the commission's report before a President could take
office. Since the Democrats controlled the House of Representatives, they could
prevent a Hayes victory. But a group of conservative Southern Democrats, seeing
the chance to use the crisis for their political advantage, had ... been talking with
spokesmen for Hayes ... " (1)

And yet, as much attention as has been devoted to the 'Compromise of 1877' in more
contemporary textbooks and literature, there is more to the story than is portrayed. It is
often depicted as one of the anamalous cases in which the candidate winning the electoral
vote did not carry the popular vote, but that is not exactly true. The 'Compromise' did
avert a constitutional crisis and even perhaps a renewal of civil war hostilities. The
exigencies of the constitutional crisis which threatened have not been well delineated.

It is true that by 1876, Redemption had progressed some distance in the South.
Between 1869 and 1871, Tennessee, Virginia, North Carolina, and Georgia had each been
'redeemed' or, perhaps better, 'reconquered' by white and former rebel Southerners.
Alabama, Arkansas, Texas, and Mississippi joined that 'elite' group in 1874 and '75. Thus,
by 1877, only South Carolina and Louisiana, and to a more limited extent, Florida, still
had Reconstruction governments. In 1876, there were actually two governors elected in
Louisiana, and, in the wake of the Compromise of 1877 with the removal of federal
troops, Redeemer Wade Hampton, a former Confederate General, emerged over former
Union General Daniel Chamberlain(2). So the three remaining 'reconstructed' old
Confederate states were hardly free from the assault of Redemption. Recognizing just how
close the nation was to breaking down in the crisis does much to alter our perceptions of
the Compromise.

The election boards in all of these states had invalidated thousands of votes for the
Democrats on the basis of intimidation or fraud, much of which we would today call the
violation of civil rights. By the other side, black, carpetbagger, and scalawag votes were
not counted at all. (3) Without the vote of these states, Tilden's supposed plurality in
popular votes was suspect, and his plurality in the Electoral College was 184 to 165, one
short of victory. If the twenty reconstruction government votes from these states
(including the single one in dispute from Oregon) were counted, however, Hayes would
win. But if the Redemption slates were recognized, Tilden would prevail.

The controversy never reached the stage of a House vote per Constitutional provision,
though the Congress did enact the Electoral Commission. The debate centered on which
slates of electors to recognize and the Compromise of 1877 settling the matter is well
known. The popular rendition is of a Hayes/Republican 'sell-out' of the freedmen to win
Southern support for election(4). But it is not so simple as all that infers, though the
implications for race relations in the U.S. were far-reaching.

As they had for years before the Civil War, the formerly Whig and later Republican
forces were convinced that successful 'liberation' for (by then former) slaves rested, as it
did with all people, on the rising value of labor which would accompany industrialization
(5 ), and nothing of the sort would be the scenario under Democratic leadership. That
other scenario proved to be the case as Redemption relegated black Southerners to
sharecropping compounded by Jim Crow. Something of the rising value of labor thread as
a basis for Republican faith is suggested in C. Vann Woodward's account of the role of the
railroads in the Compromise (6), because it would be the industrialization and requisite
infrastructure which would produce the enhanced labor power.

The Electoral Commission, with a majority of Republicans, could rule for
Reconstructed or for Redeemed governments and slates. Of course, the Democratically
controlled House could reject the report but it might not want to have the House vote on
election, as will be demonstrated. Some Democrats from the South did begin to see a way
through which they could 'win' through support of Hayes.

The Compromise may have contributed to both Houses of Congress going Democratic
in 1878, but it had looked for some time as if this was the direction things were headed
over the short term regardless, given Southern Redemption, unless there was going to be
some massive effort at the federal level to counter it.

But that was not the situation after the 1876 election. The Senate could change even
sooner with Redemption governments prevailing in all these states and being able to
replace their Senators even before they were supposed to if it had been 'necessary.' In the
House, the case was much different. If the election had been decided by the House, it can
be speculated as to what the results would have been. At the time, there were 38 states in
the Union and thus, a victory in the House would have required 20 state delegation votes.
The partisan make-up of the state delegations can give some indication as to how they
might well have voted if the House had been forced to decide. Although the Democrats
held a majority in the 1877-79 Congressional term, if they had voted, it would not be that
division which would have prevailed. Such vote, of course, would have been taken on the
basis of each state delegation having one vote. (See Table I)

Since only two candidates had received votes in the Electoral College, the
Constitutional provision of choice from among the top three would have been irrelevant.
A Hayes victory would seem to have been secure. The one state in which there might have
been substantive basis for horsetrading, New York, was actually an 'extra' margin of
victory for Hayes, who it could be anticipated would have carried 21 states, with only 20
needed to win. It is likely, too, that the 39-37 GOP controlled Senate would have chosen
the Republican Vice Presidential candidate, although there were divisions in the party
which were such that might raise some questions on that score. The Republican Party was
fragmented by faction, but probably only in the New York House delegation (that is,
outside the South) would that have been a crucial enough issue to potentially alter the
apparent vote there.

TABLE I -- STATE HOUSE DELEGATION COMPOSITION -- 1877(7)

DEMOCRATIC DELEGATIONS EVEN DIVISION REPUBLICAN DELEGATIONS

1 Alabama 7 D 1 R 1 Florida 1 D 1 R 1 California 1 D 3 R
2 Arkansas 4 D 2 Colorado 1 R
3 Connecticut 3 D 1 R 3 Illinois 8 D 11R
4 Delaware 1 D 4 Indiana 4 D 9 R
5 Georgia 9 D 5 Iowa 9 R
6 Kentucky 10D 6 Kansas 3 R
7 Louisiana 4 D 2 R 7 Maine 5 R
8 Maryland 6 D 8 Mass. 1 D 10 R
9 Mississippi 6 D 9 Michigan 1 D 8 R
10 Missouri 9 D 4 R 10 Minnesota 3 R
11 New Jersey 4 D 3 R 11 Nebraska 1 R
12 North Car. 7 D 1 R 12 Nevada 1 R
13 Tennessee 8 D 2 R 13 New Hamp.* 1 D 2 R
14 Texas 6 D 14 New York 16 D 17 R
15 Virginia 8 D 1 R 15 Ohio 9 D 11 R
16 West Va. 3 D 16 Oregon 1 R
*N.H.'s delegation had been 17 Pennsylvania 11D 16R
re-elected in 1875. In 1877, 2 Dems 18 Rhode Island 2 R
and 1 Rep were elected, but not 19 South Car. 2 D 3 R
until well after such a vote as this 20 Vermont 3 R
should have taken place. 21 Wisconsin 3D 5 R

The Democratic leadership in the House would hardly have seen much advantage in an
election by that body on that basis. And the Compromise would probably have to be seen
as more favorable to the remnants of Reconstruction, minimal as that might have been.
They stood to gain more of an advantage (or less of a disadvantage) with the Commission
route that was taken. Foner seems to overlook this break-down in his anticipation of
Southern Congressmen switching to Hayes -- it might not have been necessary.

And yet, given a Democratically controlled House, and keeping in mind the narrow
hold Republicans rift with faction had on New York, there might have been the basis for
severe conflict in the House. Without New York, the perception of South Carolina as the
pivotal state could have meant efforts to tinker with the seating of that and other state
delegations. They might well have challenged the seating of all three Republican
representatives; but all that would have been necessary would have been that of any of
them.

The election results for the House in South Carolina in 1876 demonstrate just how
close the division in that state was.

TABLE 2 -- 1876 SOUTH CAROLINA HOUSE VOTE(8)

District 1 Rainey (R) 18180 52.2%
Richardson(D) 16661 47.8

2 Cain(R) 21385 62.1
O'Connor(D) 13028 37.9

3 Aiken(D) 21479 58.0
Carpenter(R) 15553 42.0

4 Evans(D) 21875 57.7
Wallace(R) 16071 42.4

5 Smalls(R) 19954 51.9
Tilman(D) 18516 48.1

The most vulnerable seat would seem to have been in the 5th District where the
Reconstruction Republican had garnered a plurality of only 1438 votes, less than 2 % of
the total. The Union Civil War veteran and hero who won the seat, Robert Smalls, was
also a black man. Although Rainey's victory in District 1 was only slightly more
substantive (a mere 1519 plurality), it is not unlikely that Redemption Democrats would
have targeted Smalls' seat (if not all three black Republican seats). The accusations and
terror employed during the election, and the controversy emanating from it, could most
readily have been used to lead to the Democrat controlled House voting to turn him
(them?) out.

Had they been able to seat Tilman in place of Smalls, the door would have been
opened to wheeling and dealing in New York. Six of the Republicans there had won
equally razor-thin contests(9), and while Redemption was not afoot in that state as it was
in South Carolina, the dispute could have brimmed over to those districts as well, where
the factional strife in the GOP could have complicated holding the state. There was no
guarantee that all of the New York Republicans could have been held for Hayes.

In Florida, the one vote each deadlock was just as vulnerable as the South Carolina
situation. While both parties had captured one seat by narrow margins, the Republican,
Horatio Bisbee had outpolled his Democratic opponent by a mere 17 votes (11470 to
11453)(10). Oregon, with one disputed Electoral Vote, had also sent a Republican to
Congress, and by a mere 1100 vote plurality(11). Since it is the House which itself
determines whether representatives will be seated, and which resolves as it desires disputes
as to that matter, the Democratic leadership of the House could have effected some
important changes for those seats.

Had House Democrats there 'captured' or 'redeemed' South Carolina and Florida along
with Oregon from the carpetbaggers, scalawags, and black voters, Hayes potential election
would have hung on what happened with New York. Given the fortunes resultant out of
the Compromise in the Electoral Commission, one could scarcely hope for much better (or
much worse) had the House had to vote. It is quite within the realm of possibility that a
deadlock could have resulted in the House, following that scenario, with an evenly divided
New York delegation where only one Republican even abstained, so that the Vice
President chosen by the Republican Senate might have become President. In addition to
the possibility that Democrats could have captured South Carolina, Florida, Oregon, and
perhaps even New York, and given Tilden the Presidency, the New Hampshire
Congressional later on in 1877 gave Democrats an additional state -- important had the
process dragged on.

The 1878 Congressional elections would have allowed the Democrats to elect Tilden had
they been so disposed(12). In the interim, William Wheeler, Republican Vice Presidential
candidate, could have served as Acting President. Since there is no stipulation as to the
term of someone assuming the office in such a manner other than the constitutional term
of four years for the Executive, there could have been constitutional machinations and
crises developing that would have left the tenure of such a President in question.

It is less likely but still possible, too, that Reconstruction Republican Senators left from
the South could have been challenged either in that body or more probably in their state
legislatures, but by 1878, Democrats also gained control there in the upper house, in part
by 'redeeming' the South(13). Whether or not their terms from Redeemed states survived,
a Democratic Senate could have voted to replace or unseat individual Senators of the
Reconstruction era, and to replace Wheeler with Tilden's VP nominee, Thomas Hendricks,
even had the Democratic House not been able to vote anew to elect Tilden.

Since it is the Senate which determines the counting of the electoral vote, or more
precisely, the President of the Senate (or President pro tempore), and he was a
Republican, Hayes might have been able to win there. But the controversy was such that
the Electoral Commission was formed to determine the outcome instead. Even it had its
travails in reaching its decision. For the Republicans, however, the issue at that point must
have reached beyond the executive contest. The scenario portrayed here points to
tremendous volatility. Republicans might have stood to loose some seats in the House and
perhaps even the Senate had events played out as they could have, had they pressed for a
Senate declaration of Hayes' election -- not a very sound political move.

It might even be conceivable that a Senate counting of votes without the Commission
Compromise which elected Hayes could have led the Democratic House to pursue the
machinations resulting in the placing of its mantle of the Presidency on Tilden. We might
even have had two Presidents, one elected by the Senate counting the electoral vote and
one by the House! Florida did have two Governors for a time(14). At that point, all hell
could have broken loose. The resultant constitutional crisis might have sparked open
conflict (the use of terror and violence against black Republicans in the South had already
become widespread and commonplace). While it was clearly not the case for the Southern
freedmen, the Compromise of 1877 is often said to have averted bloodshed. We probably
cannot, from our vantage point, really understand just how explosive the situation had
become.

And with a possible 'pretender' in the Presidency, such as Wheeler, or a debate raging
over which President was the 'real' one in the other case, what might have been the
consequences for the nation when the Great Railway Strike erupted across the country
weeks later? The west was also gripped in the Indian civil wars, scandal was shaking the
national government, and there were labor and other actions taken by the freedmen who
felt the rug being pulled out from under them. And that does not even consider the degree
of terror that was riding rough-herd through the Redeemed South structuring the first
vestiges of sharecropping, Jim Crow, and disenfranchisement.

We actually could have seen a string of impotent pretenders to the throne, as first
Wheeler, then Hendricks, and finally Tilden were passed the hat to wear. Order of
secession laws could have involved others, as well, from cabinet officials to the Speaker
and President pro tempore, etc., depending on the political winds and whims in the
Congress. And although he was physically and politically weakened, it is not impossible
that Grant could have determined it a necessity for him to stay on as President, even under
military rule or martial law, especially given the genuine prospect that the nation was
teetering near the edge of a renewal of hostilities of civil war, secession, and the like.

Eric Foner has good reason for suspecting movement among Southern Democratic
ranks to form a coalition of sorts with Hayes(15), both securing his election and in
governing after that. He is not less convinced that violent reaction was not far beneath the
surface throughout the entire affair. He has also described the legality of the Electoral
Commission Act in some detail. ( 16 ) Republicans in the three Southern states also, he
points out, controlled the election process in each, but it was a waning control with a
short life expectancy(17).

It has become sport to speculate on potential curious twists of electoral fate in the top
contest in this country. Most recently, it was speculated that Perot might have thrown the
1992 election into the House, where there could have been deadlock in addition to
gridlock, while a Republican Senate could have elected Dan Quayle Vice President, and he
would have become President, no President having been elected. Nothing of the sort, of
course, happened. Similar scenarios were laid out in 1968. It may be good sport, but it is
serious business.

Historical judgment of Hayes and the Republicans has been harsh. Perhaps deservedly
so. It may be, however, that the deal they struck was preferable to the alternatives they
were faced with at that moment, poor as it may have been. In Hayes' and the Republicans
behalf, it is clear that the removal of federal troops from the South would have been
almost a certainty had Tilden won the White House. This was clearly not simply, as it
seems commonly portrayed, a situation in which the Electoral College 'misfired,' Hayes
'winning' even though he did not carry the popular vote, but only because he was able
through machinations to carry the electoral vote.

July 5, 1996

REFERENCES

Boorstin Daniel and Martha Kelley 1990. A History of the United States, Prentis
Hall/Simon and Schuster.

Carey, Henry 1849. Slave Trade, Foreign and Domestic, Kelley.

Congressional Quarterly's Guide to US Elections, 2nd Ed., 1984, CQ Press.

Foner, Eric 1970. Free Soil, Free Labor, and Free Men: The Ideology of the Republican
Party Before the Civil War, OUP.

Foner, Eric 1983. Nothing But Freedom: Emancipation and Its Legacy, Louisiana
University Press.

Foner, Eric 1988. Reconstruction: America's Second Revolution 1983-77, Harper Collins.

Woodward, C. Vann 1974. The Strange Career of Jim Crow, 3rd Ed., OUP.

Woodward, C. Vann 1992. Reunion and Reaction: The Compromise of 1877 and the End
of Reconstruction, OUP.

FOOTNOTES

1. Boorstin, Daniel and Martha Kelley. A History of the United States, p 322.
2 Congressional Quarterly's Guide to US Elections, 2nd Ed.
3. Woodward, C. Vann. Reunion and Reaction.
4. Boorstin, Ob cit.
5. Carey, Henry. Slave Trade, Foreign and Domestic.
6. Congressional Quarterly's Guide to US Elections, 2nd Ed.
7. CQ's Guide to US Elections.
8. CQ's Guide to US Elections.
9. CQ's Guide to US Elections.
10. CQ's Guide to US Elections.
11. CQ's Guide to US Elections.
12. CQ's Guide to US Elections.
13. CQ's Guide to US Elections.
14. CQ's Guide to US Elections.
15. Foner,Eric. Reunion and Reaction.
16. Foner, Eric. Reunion and Reaction.
17. Foner, Eric. Reunion and Reaction.

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AVERTING THE CONSTITUTIONAL CRISIS

TABLE 2 -- 1876 SOUTH CAROLINA HOUSE VOTE(8) District 1 Rainey (R) 18180 52.2% Richardson(D) 16661 47.8 2 Cain(R) 21385 62.1 O'Connor(D) 13028 37.9 3 Aiken(D) 21479 58.0 Carpenter(R) 15553 42.0 4 Evans(D) 21875 57.7 Wallace(R) 16071 42.4 5 Smalls(R) 19954 51.9 Tilman(D) 18516 48.1