The members of the commission voting in favor of this decision were (alphabetically stated) Mr. Justice Bradley, Messrs. Edmunds, Frelinghuysen, Garfield, Hoar, Mr. Justice Miller, Mr. Morton, and Mr. Justice Strong. Those who voted in the negative were Messrs. Abbott, Bayard, Mr. Justice Clifford, Mr. Justice Field, and Messrs. Hunton, Payne, and Thurman.
In the course of the discussions in the consultations of the commission on the Florida case, Senator Frelinghuysen, in support of his view that there was no power to go behind the regular returns, called the attention of the commission to the debates in the Senate on January 7, 1873, as reported in the “Congressional Record,” to the opinion expressed by Senator Thurman in the consideration of a resolution authorizing an investigation as to whether the election for President and Vice-President had been conducted in Louisiana and Arkansas in 1872 in accordance with the laws of the United States, in which Mr. Thurman was reported as saying, “There seems to be no way provided by Congress, and no way, I believe, that Congress, as the Constitution stands, can provide to try the title of an elector to his office”; and he proceeded to say, “I take it that the entire control over the manner of appointing the electors is one of the reserved rights of the State.”
Mr. Thurman, on hearing this read by Mr. Frelinghuysen, said: “I have changed my mind.” Mr. Frelinghuysen, also quoting from the “Congressional Record” reporting the proceedings of the Senate on February 25, 1875, in considering the bill then pending to provide for counting the votes for President and Vice-President, read from the speech of Senator Bayard on the subject, in which Mr. Bayard said, “There is no pretext that for any cause whatever Congress has any power, or all the other departments of the Government have any power, to refuse to receive and count the result of the action of the voters of the States in that election, as certified by the electors whom they have chosen.” (See official report of the Proceedings of the Commission compiled and printed by order of Congress, page 847.)
But it is a duty and a pleasure to say that I am sure both Mr. Bayard and Mr. Thurman voted with perfect honesty and sincerity. Thus it will be seen that the fundamental and controlling question in the three disputed elections before mentioned was not new.