Electoral Crisis (1877)

Primary Source

Rutherford B. Hayes

“All’s well that ends well.” The whole matter of the Presidency seems to me to be simple and to admit of a peaceful solution. The machinery for such a contingency as threatens to present itself has been all carefully prepared. It only requires lubricating, owing to disuse. The army should have nothing to do with the selection or inauguration of Presidents. The people elect the Presidents. Congress declares in a joint session who he is. We of the Army have only to obey his mandates and are protected in so doing only so far as they may be lawful. Our commissions express that.

I like Jefferson’s way of inauguration; it suits our system. He inaugurated himself simply by taking the oath of office. There is no other legal inauguration in our system. Our system does not provide that one President should inaugurate another. There might be danger in that and it was studiously left out of the Charter. But you are placed in an exceptionally important position in connection with coming events. The Capitol is in my jurisdiction also, but I am a subordinate and not on the spot. And if I were so also would my superior in authority, for there is the station of the General-in-Chief. On the principle that a regularly elected President’s term of office expires with the 3rd of March (of which I have not the slightest doubt and which the laws bearing on the subject uniformly recognize) and in consideration of the possibility that the lawfully elected President may not appear until the 5th of March, a great deal of responsibility may necessarily fall upon you. You hold over. You will have power and prestige to support you.

The Secretary of War too probably holds over. But if no President appears, he may not be able to exercise functions in the name of a President. For his proper acts are of a known superior, a lawful President. You act on your own responsibility and by virtue of a Commission only restricted by the law. The Secretary of War is only the mouthpiece of a President. You are not. If neither candidate has a Constitutional majority of the Electoral College or the Senate and House on the occasion of the count do not unite in declaring some person legally elected by the people, there is a lawful machinery already provided to meet that contingency and to decide the question peacefully. It has not been recently used, no occasion presenting itself. But our forefathers provided it. It has been exercised and has been recognized and submitted to as lawful on every hand. That machinery would probably elect Mr. Tilden President and Mr. Wheeler Vice-President. That would be right enough, for the law provides that in failure to elect duly by the people, the House shall immediately elect the President and the Senate the Vice-President. Some tribunal must decide whether the people have duly elected a President.

I presume of course that it is in the joint affirmative action of the Senate and House. Why are they present to witness the count if not to see that it is fair and just? If a failure to agree arises between the two bodies, there can be no lawful affirmative decision that the people have elected a President and the House must then proceed to act, not the Senate. The Senate elects Vice-Presidents, not Presidents. Doubtless in case of a failure by the House to elect a President by the 4th of March, the President of the Senate (if there be one) would be the legitimate person to exercise Presidential authority for the time being or until the appearance of a lawful President, or for the time laid down in the Constitution. Such a course would be a peaceful and, I have a firm belief, a lawful one. I have no doubt Governor Hayes would make an excellent President. I have met him and know of him. For a brief period he served under my command, but as the matter stands I can’t see any likelihood of his being duly declared elected by the people unless the Senate and House come to be in accord as to that fact and the House would of course not otherwise elect him.

What the people want is a peaceful determination of this matter, as fair a determination as possible, and a lawful one. No other determination could stand the test. The country if not plunged into revolution would become poorer day by day, business would languish, and our bonds would come home to find a “depreciated” market. As I have been writing thus freely to you, I may still further unbosom myself by stating that I have not thought it lawful or wise to use Federal troops in such matters as have transpired east of the Mississippi within the last few months, save as far as they may be brought into action under the Constitution which contemplates meeting armed resistance and invasion of a State more powerful than the State authorities can subdue by the ordinary processes, and then only when requested by the Legislature or if that body could not be convened in season by the Governor. And if the President of the United States intervenes in the matter it is a state of war, not peace. The Army is laboring under disadvantages and has been used unlawfully at times, in the judgment of the people (in mine certainly), and we have lost a great deal of the kindly feeling which the community at large once felt for us. It is time to stop and unload. Officers in command of troops often find it difficult to act wisely and safely, when superiors in authority have different views of the laws from them and when legislation has sanctioned action seemingly in conflict with the fundamental law and they generally defer to the known judgment of their superiors. Yet the superior officers of the Army are so regarded in such great crises and are held to such responsibility, especially those at or near the head of it, that it is necessary on such momentous occasions to determine for themselves what is lawful and what is not lawful under our system, if the military authorities should be invoked as might possibly be the case in such exceptional times when there existed such divergent views as to the correct result. The Army will suffer from its past action if it has acted wrongfully. Our regular Army has little hold upon the affections of the people of today and its superior officers should certainly as far as lies in their power, legally, and with righteous intent aim to defend the right which to us is the law and the institution which they represent. It is a well-meaning institution and it would be well if it should have an opportunity to be recognized as a bulwark in support of the right of the people and of the law.

Source: Almira Russell Hancock, Reminiscences of Winfield Scott Hancock (1887), 152-157. https://archive.org/details/americanhistoryt00ivunse/page/504/mode/2up