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.
ELECTORS (Ger. Kurfürsten, from Küren, O.H.G. kiosan, choose, elect, and Fürst, 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
